December 21, 1994
Honorable Allen Hightower
Chair
Committee on Corrections
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Letter Opinion No. 94-094
Re: Interpretation of sections 75.001 to
75.003 of the Civil Practice and Remedies
Code, which limit the liability of
landowners, lessees, or occupants of real
property who permit recreational use of
their land (ID# 25540)
Dear Representative Hightower:
You ask this office to interpret sections 75.001 to 75.003 of the Civil Practice and
Remedies Code, which limit the liability of landowners, lessees, or occupants of real
property who permit recreational use of their land.
Section 75.002(c) provides that an “owner, lessee, or occupant of real property”
who permits another
to enter the premises for recreation . . . does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the [permittee] a greater degree of care
than . . . to a trespasser . . . ; or
(3) assume responsibility or incur liability . . . caused by
any act of the [permittee] . . . .
Section 75.002(b) extends this freedom from liability to proprietors of agricultural land,
section 75.002(c) to those who possess non-agricultural land.
You first ask whether “hunting clubs or an individual who leases land for hunting
is covered by the law?” In our view, the answer to your question is yes. We view the
phrase “an owner, lessee or occupant of” real property, whether agricultural or non-
agricultural, to include all legal entities with a present possessory interest in real
property . Further, we note that section 75.001 defines “recreation” as “an activity such
as hunting.”
You ask if there are “any exceptions” to the statute’s coverage. We would point
out that limitation of liability, according to section 75.002(d), does not apply to gross
negligence, malicious intent, or bad faith. Further, section 75.003(c) states that the
chapter generally applies to owners, lessees, or occupants of real property who either do
not charge for entry on the premises, or “whose total charges collected in the previous
calendar year for all recreational use of the entire premises of the owner, lessee, or
occupant are not more than twice the total amount of ad valorem taxes imposed on the
premises for the previous calendar year.”
Further, you note that some landowners require that lessees acquire recreational
liability policies which name the owner as an additional insured. You ask if this
coverage is “warranted under the state law.” As we read the Civil Practice and Remedies
Code, there may be little economic rationale for the owners to make such a requirement,
since section 75.002 insulates them from any liability save for gross negligence,
intentional torts, or bad faith, which are generally uninsurable. However, we see nothing
in the chapter which would forbid a landowner from making such a requirement as a
contractual matter, should the landowner decide to do so out of an abundance of caution.
S U M M A R Y
Section 75.002 of the Civil Practice and Remedies Code’s
reference to an “owner, lessee, or occupant” of real property
includes within it all legal entities with a present possessory interest
in real property. The limitation of liability in this chapter does not
apply to intentional torts, gross negligence, or bad faith Further, the
chapter applies only to owners, lessees, or occupants who either do
not charge for entry on the land, or whose total charges do not
exceed twice the total amount of ad valorem taxes imposed on the
premises for the previous calendar year. Nothing in the chapter
would forbid a landowner, as a contractual matter, from requiring
his lessee to acquire recreational liability insurance naming the
owner as an additional insured.
Yours very truly,
James Tourtelott
Assistant Attorney General
Opinion Committee
We note that this provision does not apply to governmental entities, who owe a higher duty of
care under section 101.022 of the Texas Tort Claims Act. Civ. Prac. & Rem. Code ch. 101. City of
Dallas v. Mitchell, 870 S.W.2d 21 (Tex. 1994).
Honorable Allen Hightower - Page 2